Guardsmen case over carcinogens in Iraq removed to federal court

By Kelly Holleran | Dec 3, 2009

WHEELING – KBR and its subsidiaries have removed to federal court a complaint 32 former guardsmen filed against the contractor, alleging they were exposed to a highly carcinogenic substance while working as security at an Iraqi water plant.

The guardsmen say their exposure to sodium dichromate, which contains nearly pure hexavalent chromium and is "one of the most potent carcinogens and mutagenic substances known to man," may cause them to experience cancer in the near future.

In fact, some of the plaintiffs already have begun developing respiratory system tumors characteristic with growths associated with hexavalent chromium exposure, according to the suit.

"According to Dr. Max Costa, a recognized expert on the human effects of hexavalent chromium and Chairman of the NYU Medical School Department of Environmental Medicine, exposure to 30-40 micrograms of hexavalent chromium per cubic meter, has been demonstrated to show more than 50 percent increase in cancers in exposed humans," according to the lawsuit, removed to the U.S. District Court for the Northern District of West Virginia on Nov. 5.

The plaintiffs were exposed to hexavalent chromium while working for KBR at the Qarmat Ali water plant in southern Iraq. The company was involved in a no-bid contract project in which it agreed to restore the water plant. The company's work would allow water to be pumped down into the Iraqi oil wells for a more consistent oil flow, the suit states.

When it hired West Virginia guardsmen and other British and American civilians to perform work on the well, KBR knew about the toxic substance and dangers of the site, but failed to inform the men, the complaint says. In fact, KBR conducted a full-analysis identifying the hazards at Qarmat Ali in April 2003, according to the complaint.

Because of their exposure, the guardsmen suffered permanent injuries, incurred medical costs, will incur medical monitoring expenses and lost income. In addition, they experienced pain, suffering and mental anguish and their spouses have suffered a loss of care, companionship and consortium, the suit states.

Causes of action in the complaint include negligence, gross negligence, tort of outrage, negligent infliction of emotional distress and intentional tort.

The plaintiffs are seeking compensatory, punitive and exemplary damages, plus pre- and post-judgment interest, costs and other relief the court deems just.

Plaintiffs named in the complaint include Michael Billiter, Robert Bonds, Donald Bordenkircher, Jeffrey Britton, Nathan Ferguson, Rodger M. Gamble, Fredrick Garland, Ezekial Goddard, Michael Helmick, Robert Jewell, Jason Johnson, Jon R. Littleton, Brandon Long, Anthony Q. Long, James McQuain, Garrett Michaels, Robert Mullavey, Joshua Poling, Bill Powell, Jonathan T. Regets, Joseph L. Richardson, James Robinson, Michael Schnelle, Joshua Sipos, Adam Speece, Michael Toland, Adam Traynor, Scott Urbanek, Robert Tucker, Lucian Weese, John Doe and Jane Doe.

The defendants removed the case to federal court because they are residents of different states than the West Virginia plaintiffs.
In addition, the plaintiffs are surely seeking more than $75,000, the minimum requirement for federal jurisdiction. Medical monitoring costs alone nearly exceed this sum, the defendants contend.

"The cost of a lifetime regime of biannual CT scans alone would reasonably approach $60,000," the suit states. "Add to the medical monitoring costs all of the many other claims for compensatory damages, such as Plaintiffs' alleged damages in the form of 'loss of income and/or loss of earning capacity' and any common sense review of the Plaintiffs' claims leads to the conclusion that the $75,000 threshold is satisfied."

Added to the reasons the case belongs in federal court, the defendants say the case is being brought against an entity acting under a federal officer and raises federal questions.

Jeffrey V. Kessler of Berry, Kessler, Crutchfield, Taylor and Gordon in Moundsville and Joseph A. Yanny, Kim D. Ashley, Raphael B. Emanuel and Lory N. Ishii of Yanny and Smith in Los Angeles will be representing the plaintiffs.

William D. Wilmoth of Steptoe and Johnson in Wheeling will be representing the defendants.

U.S. District Court case number: 5:09- CV-119

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